Thursday, November 24, 2005

Tonight I watched a friend of mine be called to the bar. He became a barrister. The ceremony had touching moments and was held in the perfect setting, the Temple Church in the Temple in London. If you've read the Da Vinci Code, you will know of this church and its associations with the (murky) Knights Templar--their effigies lie in state--and the Holy Grail and so forth.

The novices lined up down the aisle of the church and when it was their turn the reader at his lectern would announce the name of the barrister, their degrees obtained, and the name of the sponsor. The senior official calling the barristers was the treasurer of Inner Temple, one of the four Inns of Court. Each would walk to the treasurer and bow while the sponsor moved to call the barrister. The new barrister would then bow to the treasurer once more and turn and bow to the sponsor. The treasurer then made a few comments about being a barrister--in turns serious and humerous. One could tell that all those participating and those watching, the parents and friends, came away satisfied. Something happened, but what? In mundane terms the candidates received certificates with fancy scrolling on them. However, it was a rite of passage. One of the attributes of a rite of passage is that the participants actually want to go through it despite the fact it might be harmful or painful. It signifies to the wider community that you have earned your status; it wasn't just handed to you. I don't think becoming a barrister was painful, but the novices tonight did dress in funny clothes--suits, gowns, wing collars and white bands. Every one else more or less wore normal clothes. However, it did remind me that when I dined at an Oxford college recently, I had to wear a gown while sitting at high table. Nevertheless, these barristers wanted to be barristers so badly that they were prepared to dress strangely and perform odd movements in public. We, the audience, accepted it as natural, no matter how remote it was from our own experiences.

It was all so different when I accompanied a friend to her bar admission in Chicago, Illinois some years ago. Standing in the balcony of a downtown theatre several hundred people raised their hands and swore fealty. That was about it. All very mechanical, no intimacy, merely a necessary step to becoming a lawyer. All the more wonder it wasn't just done online with a digital signature.

My friend tonight joined a tribe. He will be loyal and he will enjoy some support from it, but I don't want to over-egg this pudding. He knows where he belongs. I wish him well.

Tuesday, November 22, 2005

I've mentioned in an earlier blog--Problems with Legal Aid in the UK and Elsewhere on 10 October--that the rising cost of legal aid is causing problems to governments who are trying to contain costs. In our research one element that is causing interest is case management, that is where judges control the life course of the case and ensure that the court functions smoothly without hiccups. It is especially crucial in large, complex cases, eg, asbestosis claims or the tobacco litigation.

But it also crops up in unexpected places. I experienced at firsthand an instance of what I must call superlative case management in a local court in a suburb of Chicago in the 1980s. At this time I was doing my PhD in sociology at Northwestern University on the topic "Anatomy of Lawyering: An Ethnography of a Corporate Law Firm", which involved me being a participant-observer in a law firm in downtown Chicago. My then girlfriend was invited to a friend's house in the suburbs and asked me to drive. Since I didn't have a car I enjoyed driving occasionally. I was feeling pleased with myself as I was driving fast down a nice straight road when I saw flashing lights in my rearview mirror. I pulled over and waited for the policeman to come and ask for my licence. When I handed it over he looked upset. My licence was British not from Illinois and he couldn't confiscate it. His radar gun had caught me doing over 70mph in a 30mph limit. He then asked me if I had any money. I said no. Next he suggested I call friends to get some money. I said I couldn't do that either. No confiscated licence and no bond money. I could see he was becoming frustrated with me. We went to the station where he recorded my details and warned me to turn up at traffic court.

Back at the law firm I asked the lawyers about what would happen. They seemed carefree and told me not to worry. I should just tell the prosecutor that I was from XXX law firm.

Arriving for my 10am hearing at the court, I saw the courtroom wasn't very big but was packed with about 300 people. And given that the next "hearing" was at 11am I was curious to know how they got through their cases. The judge came in and began talking to us: "I know you are all here because you've committed traffic offences. Now I want to keep this simple and quick. I suggest if you are 5mph over the limit you pay a fine of $50 and get two months supervision; if you are 10mph over the limit you pay $80 and..." And he carried on in five mile an hour increments, but every so often he would interject: "Of course, if you think that you are not guilty of the offence with which you've been charged, you are entitled to a trial." It was said with such emphasis, import and seriousness, that you knew that if you said "yes, I want a trial", the result would be spectacularly horrible. His tone said: "Don't do this or else...!" "If you are satisfied with the way I would like to deal with this then please form a line in front of the clerk of the court with your chequebooks. The noise of scraping chairs was very loud as 300 people rose and shifted to the left forming a queue in front of the clerk.

I didn't move. I had been told to speak to the prosecutor but I didn't know who he was or even if he was there. Close to me were six other guys. The judge came over to us and asked us who we were. We were all lawyers. He asked which firms we belonged to and nodded as we told him. He looked at each of us and said: "I don't want to see you here again because if I do, you will get fines and supervisions. Now go." We left.

At that time Operation Greylord was being mounted by the FBI investigating corrupt judges in Cook County, which includes Chicago. Then if you were a lawyer charged with a traffic offence, the fact you appeared in court showed sufficient respect for the judge and you were exonerated. This was the essence of professional courtesy. (It operated at all sorts of levels. Once I was driving with an Air Force colonel who made an illegal left turn. On being stopped by a motorcycle cop, he showed him his Air Force ID. The asked about flying jackets and without missing a beat the colonel asked the cop's size. The deal was done in 30 seconds flat.)

Operation Greylord showed high levels of corruption among judges and lawyers. The suburbs, however, were a different matter. Most of the localities revenues came from property taxes. Property owners had votes which meant simply if you put the taxes up you could be out of office at the next election. How therefore to supplement property taxes without penalising the voters. Traffic violations were the answer: nobody contested them. Most of the offenders were from out of town, like me. They didn't have votes. It was easy money.

The way the judge handled his court meant he could dispose of hundreds of cases a day without breaking a sweat. It was supreme case management. He made it easy to compy with his suggestions and was subtle about what could happen if you decided to contradict him. There was an elegance to it. One could see that re-election was never going to be a problem. Too many voters relied on him to keep those pesky property taxes at a tolerable level.

Friday, November 18, 2005

Quite a lot of my time recently has been taken up by reviewing. Most of the activity is reviewing research grant applications for one of the research councils in the UK, but other research bodies also ask me for reviews. I like reviewing. It's good to see what is being done out there in the academic world; it gives me ideas; and most importantly it reminds me of the mistakes we most commonly make when writing research proposals.

The key components of a good research proposal are a good research question, one that is going to drive the research along, and a set of methods that are appropriate and well-specified. Since I teach research methods to law graduate students, I am constantly repeating these points. (I may have reached the stage where I dream about them.) I know that students won't always fully appreciate this the first time round, but they will get it eventually.

It's the full-time academics who don't get it that surprise me. I've mentioned two components: research questions and methods. They are the basis for a good and successful proposal. Research questions fail because they are ambiguous or too vague or, in some cases, aren't really questions. Methods, well, methods. In the socio-legal community there is generally an appreciation of the role of methods in research. How exactly are you going to get your information? Who from? And so on. Too often one sees "the data will be collected using semi-structured interviews". And that's it: nothing else. This is not good. I sometimes believe we live under the curse of the semi-structured interview. It has become the get-out clause for many researchers. One doesn't have to specify too much and basically one will think of something at the time of the interview. That's the kind of impression it creates.

Of course there is a place for this type of interview. But researchers must realise that they need to supply more information about the sorts of things they will ask about, to whom, etc. And also provide some idea of how they will analyse their data. Without this the reviewer is left in the dark.

I recently visited a research council and watched over 30 research grant applications being appraised. The clear losers failed for the reasons I've outlined. It wasn't the novices or junior applicants that were the worst cases, rather it was senior people who gave the impression of not bothering too much. When you are asking for money, whether it's £1500 or £400,000, you better bother a lot.

Wednesday, November 02, 2005

I have been surrounded by bibliographies today. These lists of books, articles and the other desiderata of academic writing are how we indicate to others that we know how to do research. They indicate the sources of our knowledge and tell of how we arrived at our present positions. Although they are important, they are often ignored or considered poorly.

The process of writing a dissertation or thesis is supposed to inculcate in one the significance of a properly compiled bibliography. Looking through it the reader follows the writer's intellectual journey. The reader can see the paths taken and those passed and not traversed.

As we write, we have to be aware from where we are deriving ideas. We have an ethical duty to avoid plagiarism, not to claim as ours that which belongs to another. We litter our texts with authors' names and dates showing our facility in synthesis as we weave together disparate ideas into a new theory. Are we hedgehogs or foxes? Have we read deeply or widely?

The ways of citing others' work are many and varied: Turabian, Chicago, Harvard are a few. But once one has selected a style, the structure of the style does the work for one. Students seem to have a hard time appreciating this. I have had two PhD students who were less than careful with the citation styles or referencing and their bibliographies to an extent that the examiners refused to pass them until they were put in proper order. And the biggest argument I had with my masters' students recently was over how to choose a style and why one should select one at all. But they also added a twist that was new to me. What exactly should a bibliography contain?

To me it's straightforward: what is cited gets placed in the bibliography. Anything else is superfluous. However, their take on the role of the bibliography, and therefore its contents, was that it should reflect everything they had read in conjunction with their research regardless of whether it was cited or not. When I said no, they argued for two bibliographies, one of cited works and the other of read works. Again, no. They weren't happy with my rejection.

Nowadays there is software to compile references and bibliographies, but there is still a pleasure in doing it manually, of seeing the list emerge. For me, I like to do it as I write, then as the paper grows so does the bibliography. It has a nurturing sensation about it.